Opinion
04-09-2015
BRONX OVERALL ECONOMIC DEVELOPMENT CORPORATION, Plaintiff–Appellant, v. DNA AUTOMOTIVE CORP., et al., Defendants–Respondents, John Hazlitt, Defendant.
Underweiser & Underweiser LLP, White Plains (Jeffrey B. Underweiser of counsel), for appellant. Law Office of Steven K. Meier, New York (Steven K. Meier of counsel), for respondents.
Underweiser & Underweiser LLP, White Plains (Jeffrey B. Underweiser of counsel), for appellant.
Law Office of Steven K. Meier, New York (Steven K. Meier of counsel), for respondents.
Opinion Order, Supreme Court, Bronx County (John A. Barone, J.), entered April 14, 2014, which denied plaintiff's motion for summary judgment against defendants DNA Automotive Corp. and Gary Gartenberg, and for a default judgment against defendant John Hazlitt, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded for further proceedings.In this action to enforce two promissory notes, a loan and security agreement, and a written guaranty (collectively the documents), plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting, among other things, the documents and evidence that defendants failed
to perform under them (see 4 USS LLC v. DSW MS LLC, 120 A.D.3d 1049, 1051, 992 N.Y.S.2d 515 [1st Dept.2014] ; see also Zyskind v. FaceCake Mktg. Tech., Inc., 101 A.D.3d 550, 551, 956 N.Y.S.2d 45 [1st Dept. 2012] ).
In opposition, defendants failed to raise a triable issue of fact. Defendants' affirmative defenses are barred by the express terms of the guaranty (see Citibank v. Plapinger, 66 N.Y.2d 90, 92, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985] ; see also Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209–210, 842 N.Y.S.2d 1 [1st Dept.2007], lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ).
TOM, J.P., SWEENY, RENWICK, ANDRIAS, JJ., concur.